Non Raceday Inquiry RIU v A J Pyers 12 March 2013 – Decision dated 16 April 2013
ID: JCA12317
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
AND IN THE MATTER of the NZ Rules of Harness Racing
BETWEEN: THE RACING INTEGRITY UNIT ON BEHALF OF HARNESS RACING NEW ZEALAND - (Mr R Carmichael – Chief Race Course Inspector appearing)
Informant
AND MR ALLEN JOHN PYERS – LICENCED TO TRAIN AND OPEN HORSEMAN
Respondent
Information No: A2852
Judicial Committee: BJ Scott, Chairman - JN Holloway, Committee Member
Present: Mr R Carmichael – Chief Race Course Inspector, Mr AJ Pyers - Respondent, Mr AJ Ryan – Counsel for Mr Pyers
Registrar: None
Plea: Not Admitted
Venue: Cambridge Raceway
Date of Hearing: 12 March 2013
Date of Decision: 16 April 2013
DECISION OF JUDICIAL COMMITTEE
The Charge:
[1] The Respondent Licenced Trainer / Horseman, Mr AJ Pyers, faces the following charge:
That on the 24th day of November 2012, Allen John Pyers, being a Licensed Trainer and Open Horseman, did misconduct yourself within the meaning of Rule 303(2) of the Rules of Harness Racing, in that you directed and used foul and abusive words, including “Get f…. you fat c….t”, to Wayne Aylward, the Vice-President of the Morrinsville Trotting Club, and within the hearing of others, and that you did also flourish your whip in a dangerous manner in the vicinity of Wayne Aylward; and that you are thereby liable to the penalty or penalties that may be imposed pursuant to Rule 1003(1) of the Rules of Harness Racing”.
[2] Rule 303(2) provides:
“No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stablehand, unlicensed apprentice or racing manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter.”
Rule 1003(1) provides:
“A person who commits a reach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) A fine not exceeding $10,000.00; and/or
(b) Suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) Disqualification for a period not exceeding 12 months.
In addition to or in substitution of any penalty imposed pursuant to sub-rule(1) hereof, any horse connected with the breach of the Rule may be scratched or disqualified from any race and/or disqualified for a period not exceeding 12 months.”
[3] Mr Pyers acknowledged that he understood the Rules.
Evidence from Mr Carmichael:
[4] Mr Carmichael produced written authority from the General Manager of the Racing Integrity Unit to lodge the Information charging Mr Pyers with a breach of Rule 303(2).
[5] Mr Carmichael’s first witness was Miss Kim Kearns. Miss Kearns advised this Committee that she is a Librarian but that she has also had a Harness Training Licence for 25-30 years.
[6] Miss Kearns gave evidence about being present at the Morrinsville Trotting Club grounds on the 24th of November 2012. She said that the Committee (she thought it was the Workouts Committee) members were sitting on a wooden stage.
[7] Miss Kearns said that Mr Pyers was going out to a workout and he had a work sulky on his horse and she said that Mr Aylward had told him to go back and get the correct sulky. She said that Mr Pyers ignored Mr Aylward and continued to go around the track and when asked again in a nice manner he come over to the fence to Mr Aylward and slammed his whip down close to him. She said that Mr Pyers used the words referred to in the Information to Mr Aylward.
[8] Miss Kearns also said that the nature of the whip landing by Mr Aylward was aggressive and dangerous.
[9] Miss Kearns also said that she is not friends with any of the parties and that she was only a witness. She had provided a witness statement to Mr Carmichael.
[10] Miss Kearns did say that she was standing 10 metres behind Mr Aylward so she could not get a good view as to whether the whip struck Mr Aylward or not but she thought it was very close to that.
[11] In answer to a question from Mr Ryan she said that she thought that a Mr Teaz was there but that she did not know Mr Teaz. In answer to a further question she said that Mr Trevor Phillips was there and he had already asked Mr Pyers to change his sulky but he did not do so.
[12] Ms Kearns was asked who was in charge of the trials and if she had to pay a fee for entry and she said that she was unsure. She did not think that she paid a fee on that particular day.
[13] By way of examination Miss Kearns said that she was certain of the words complained of because she wrote a letter immediately while the words were fresh in her mind.
[14] She was asked if there was any provocation from any members of the Workouts Committee and she said no.
[15] In answer to a question from the Committee, Miss Kearns said that she didn’t know whether there were any other races there on the day and that all she was concerned about was herself and her horse. She did not take note of anything else that happened on the day other than the fact that she heard Mr Pyers utter the words complained of.
[16] Mr Carmichael then called Mr Jason Teaz to give evidence. He is a Licensed Horse Trainer.
[17] Mr Teaz said that the workouts were normally at Cambridge but once a year there is an event at Cambridge Raceway and accordingly the workouts are held at the Morrinsville Trotting Club grounds.
[18] Mr Teaz said that he wasn’t on the Workouts Committee at that stage but in some circumstances the Trotting Club asked Mr Teaz to help. He said that he was Commentator, Judge and Timekeeper. He further said that he was on a wooden platform up off the ground and he was there with Wendy Ferguson and Trevor Phillips.
Mr Teaz confirmed that Miss Kearns had her horse there and that when the programme had been submitted Mr Pyers was in Heat one.
[19] Mr Teaz said that although these were not official trials Drivers have to wear their colours and they have to use their race sulkies. This is because the Sulky fund applies.
[20] Mr Teaz said that prior to Mr Pyers Heat there was an incident in that Mr Pyers came onto the track with a work cart. It was a Challenger make of work cart. Mr Teaz said he yelled out to Mr Pyers to change the cart and Mr Trevor Phillips did so too. He said that Mr Pyers wouldn’t. He also said that other horses then went onto the track with the sulkies on.
[21] Mr Teaz said that Mr Aylward then arrived and because he was the Vice-President of the Morrinsville Trotting Club he thought that Mr Aylward would have more jurisdiction than he and he asked him to speak to Mr Pyers. He said he did so and did in a nice manner. He said that as a result Mr Pyers came back around the track and close to the rail and struck the running rail with his whip.
[22] Mr Teaz said that he wanted to have Mr Pyers horse scratched from the heat but in the finish Mr Pyers went and changed his sulky and came back out. Mr Teaz said that another Trainer Mr Peary came out with a work cart on and was asked to change it and did so without any problem.
[23] Mr Teaz said that there were quite a number of people there because the first heat was about to begin and in his view everyone heard the abuse from Mr Pyers to Mr Aylward and saw the strike with the whip.
[24] Mr Teaz, in response to a question from Mr Ryan, said that they were not official Trials and that there were no Stipendiary Stewards present but they were run under the auspices of the Cambridge Harness Racing Club and they were as official as you can get without Stipendiary Stewards etc.
[25] Mr Ryan then asked him if the fence was up to standard for a proper Trial and Mr Teaz thought it was OK.
[26] Mr Teaz was asked who was in charge of the workouts and he said that initially Mr Trevor Phillips who is Committee Member of the Morrinsville Trotting Club and then subsequently the Vice-President Mr Wayne Aylward turned up.
[27] In answer to a further question Mr Teaz explained the difference between Workouts and official Trials.
[28] Mr Teaz was asked what words Mr Pyers supposedly used and he said the words that were set out in the Information.
[29] Mr Teaz also said that when Mr Pyers went past Mr Aylward he tried hitting with the whip and he actually thought he had made contact with the whip. He said that he didn’t know how he missed.
[30] Mr Teaz was then questioned about his previous tension with Mr Pyers and the extensive texts between the two of them.
[31] Mr Teaz said that he told Mr Pyers that his behaviour was not what it should have been and that he was likely to lose his license.
[32] Under reexamination Mr Teaz said that there were no entry fees for the workouts on that day. He said that it was a decision made by the Workouts Committee on the day.
[33] Mr Carmichael then called Mr Trevor Phillips to give evidence. He advised the Committee that he is a Licensed Horse Trainer.
Mr Phillips said he was present at the workouts at the Morrinsville Trotting Club grounds on the 24th of November 2012. He said he doesn’t really have a role at the workouts but he just often helped with timekeeping and he helps out at the start.
[34] Mr Phillips said that both Mr Teaz and Mr Aylward asked Mr Pyers to go and change his cart but Mr Pyers refused. Mr Phillips said he was leaning on the rail about 3 metres away from Mr Aylward at the time.
[35] Mr Phillips said that Mr Aylward then said to Mr Pyers “if you do not change your cart you will not be able to start”. He said that Mr Pyers then said “we will see about that you f…. c…..”.
[36] Mr Phillips said that Mr Pyers took his horse around and lashed out with the whip and he said he thought that Mr Aylward had been struck across both arms. He confirmed that Mr Aylward was polite at all times.
[37] By way of cross examination, Mr Phillips said that he also asked Mr Pyers to change his sulky and said that if he didn’t do so then he wouldn’t be able to start. He said that Mr Aylward said the same thing.
[38] Mr Phillips then said that Mr Pyers went to the barn and changed his cart and then took part in the heat.
[39] Under cross examination it was suggest to Mr Phillips that the language complained of was used around the Morrinsville track. He said that certainly not in front of people.
[40] Mr Carmichael then called Mrs Wendy Ferguson to give evidence. Mrs Ferguson said that she videos the workouts when they are on and that she went to the Morrinsville Trotting Club grounds and that she was up on the platform where Mr Teaz and Mr Phillips etc were.
[41] When asked if she recalled the incident regarding Mr Pyers she said that she was sitting on the platform and she was aware that Mr Pyers was asked to change his work cart. She was also aware that Mr Aylward asked him a second time to change the cart and she saw Mr Pyers fling his whip at Mr Aylward.
[42] When asked what language she heard she said there was quite a bit of noise around but she thought that Mr Pyers called Mr Aylward a fat b……. Under cross examination Mrs Ferguson said she was not sure who was the first person to ask Mr Pyers to change his cart and that she only heard Mr Aylward do so.
[43] Mr Carmichael then called Mr James Robin Aylward to give evidence. He said that he is retired and in November 2012 he attended the workouts at the Morrinsville Trotting Club grounds as a Senior Official. He said that he was the Vice President of the Trotting Club at the time.
[44] Mr Aylward said that when he arrived he was approached by Mr Teaz and Mr Phillips and was made aware of the situation concerning Mr Pyers. He said that he then told Mr Pyers that he would have to change his cart.
[45] Mr Aylward said that he then went over to the fence and that Mr Pyers struck out at him with the whip.
Mr Aylward said that Mr Pyers called him a fat f…. c….. He said that he was out on his horse and turned and came back and struck out at Mr Aylward with the whip and he said that he saw it coming and he backed off. Mr Aylward said that Mr Phillips had also asked Mr Pyers to change his cart.
[46] By way of cross examination Mr Aylward was asked if he said “get that horse off the track it is scratched”. He said that he did not say that. He said that he advised Mr Pyers that if he did not change his cart then his horse would have to be scratched. Mr Aylward then gave evidence of some history between Mr Pyers and himself concerning their financial matters and horse ownership. He said that Mr Pyers was incorrect as far as allegations concerning horse ownership were concerned.
[47] Under cross examination Mr Aylward said that he had resigned from the Morrinsville Trotting Club Committee about six days after this particular incident.
[48] Mr Ryan then suggested to Mr Aylward that he was an aggressive man. He did not agree with that but he did say that he tries to say what is right. When asked if he was aggressive on the day he said he was just getting to do his job.
[49] Mr Ryan then asked Mr Aylward if he was the one who triggered off this incident. He said that he was not and he also said the words about “the horse is scratched” were Mr Ryan’s words not his.
[50] Mr Aylward was then asked if he agreed that the Workouts were unofficial. He said they were official Workouts under the auspices of the Cambridge Harness Racing Club and were transferred to the Morrinsville Trotting Club grounds on this occasion. He said that he was there as the Senior Official as he was the Vice President of the Morrinsville Trotting Club.
[51] Mr Carmichael then gave evidence. He produced his book of exhibits, official records, interviews and his evidence.
[52] Mr Carmichael said that on the 24th of November 2012 as a result of a telephone call from the then President of the Morrinsville Trotting Club he commenced inquiries into a matter arising during workouts at the Club’s grounds at Morrinsville.
[53] Mr Carmichael said that on the 26th of November 2012 he received a number of statements, via email, from a number of people who were at the workouts.
[54] Mr Carmichael then gave evidence about making arrangements to interview Mr Pyers and that he subsequently interviewed him at Mr Ryan’s office in Cambridge. He produced a record of that interview.
[55] Mr Carmichael confirmed that Mr Pyers was the holder of a Public Trainer and Open Horseman’s License.
[56] Mr Carmichael produced the transcript of the interview with Mr Pyers, the essence of which was that Mr Pyers denied saying that he was not going to change his cart. He also was aware that Mr Peary was not out on the track at that stage and that he would have to change his cart so Mr Pyers was spending more time out on the track. Mr Pyers also told him that Mr Aylward yelled out to him that his horse was scratched. When asked about the words complained of, he said that he did not say them to Mr Aylward nor in front of the other witnesses but he may have said the words around the corner of the track. Mr Pyers also told him that he did not lash out at Mr Aylward with the whip and smash it down in front of him but he just flicked it towards Mr Aylward. He said he was too far away from Mr Aylward and he just flicked the whip and it would not have been that hard and stopped.
[57] Under cross examination Mr Carmichael said that in respect to the meeting with Mr Pyers on the 10th of January 2013 he had to go to Morrinsville to check on another horse and he had to do a stable inspection. He said that he served the Information on Mr Pyers and that he did not seem upset about that.
[58] Mr Carmichael was asked why it took so long to provide disclosure of relevant information to Mr Ryan and he said that he was following the usual steps because a complaint had been made by the Morrinsville Trotting Club and the Club was keen to see it followed through.
[59] Mr Pyers was then called to give evidence. He read from a prepared statement.
[60] Mr Pyers confirmed that he had his horse entered at the workout. He said that the workout was scheduled for 10.00am and he was on the track at about 9.40 working his horse and he drove past a group of people. He said that unbeknown to him Wayne Aylward was in the vicinity and he called out “get that horse off the track, its scratched”. He said that he had previously had a discussion with Trevor Phillips who told him to change his cart because they wanted horses with race carts on and he had agreed, then he went another round and Trevor Phillips repeated what he had already told him. He said that he knew that John Peary was going to have a horse in the workout but he had not yet arrived so that he still had time to walk his mare back around the track and take it off and put his race cart on.
[61] Mr Pyers said that Mr Aylward’s comments to him were in a dogmatic fashion and that he was not aware that Mr Aylward had anything to do with the control of the workouts. He said that there was certainly no issue with him changing his cart from a work cart to a race cart.
[62] Mr Pyers said he was taken by surprise when Mr Aylward called out to him especially in the manner in him doing so and he did respond using the words contained in the Information. He said that at no point did Mr Aylward ever tell him to change the cart.
[63] Mr Pyers then said that he flatly denied flourishing the whip in a dangerous manner. He said that all he did was drag the whip along the rail for a short distance but it certainly did not come into contact with Mr Aylward and there was nothing dangerous about it.
[64] He said that in relation to Mr Teaz’s evidence that Mr Teaz had pestered him with text messages after the incident and made such statements to him as “you are going to lose your License” and “its all Carmichael needed” and “you will get kicked off the track”.
[65] Mr Pyers said the statements made by Trevor Phillips and Mrs Wendy Ferguson were quite wrong.
[66] Mr Pyers then advised the Committee that he suffers from dyslexia and in addition to that he has a back injury resulting from a horse falling on him. These require him to take medication.
[67] Mr Pyers said that as to the use of the “f and c words” it is a spontaneous statement from him in the particular circumstances. He said that the use of the words did not have any sexual meaning but just related to his attitude to Mr Aylward in that he was a person that Mr Pyers did not like or have any time for.
[68] Mr Pyers also sought to introduce as evidence a letter of support. This was objected to by Mr Carmichael because the content could not be tested in cross examination. The Committee upheld Mr Carmichael’s objection.
[69] Under cross examination Mr Pyers said that he did not deny that he used the words but he did deny the context in which they were being used.
[70] In answer to a further question he said that he did not know he was directing the words at Mr Aylward but rather it was just to some person who said that his horse was to be scratched.
[71] Mr Pyers was asked that after he was told by Mr Phillips to change the cart, why did he do another round of the track. He answered that it was because his mare plays up at the starting gate.
Summary by Mr Carmichael:
[72] Mr Carmichael said that it was irrelevant as to when the conduct occurred. He said that for the purposes of Rule 303(2) the words used have a common meaning and they are derogatory terms which are intended to insult. This is even if it is done as a reflex action.
[73] Mr Carmichael said that Mr Pyers knew very well that it was Mr Aylward that he was directing the words to. He also said that it was very clear that Mr Pyers walked his horse around in front of Mr Aylward and then struck the rail with his whip very close to Mr Aylward and he did so with a fair degree of force.
[74] Mr Carmichael said that the actions of Mr Pyers were not the actions of a responsible License Holder and that he is therefore guilty of misconduct.
Submissions by Mr Ryan:
[75] Mr Ryan submitted that misconduct is defined in Collins English Dictionary as
“1. Behaviour such as adultery or professional negligence that is regarded as immoral or unethical.
2. To conduct oneself in such a way.
3. To manage something badly.”
[76] He further submitted that under none of those meanings has the prosecution proved that Mr Pyers behaviour on the day in question, the 24th of November 2012 amounted to misconduct.
[77] As to the alleged foul and abusive words in the Information, Mr Ryan suggested that the language there, while inappropriate in some circumstances, was not such that it could amount to misconduct on the day in question, given the attitude of Mr Aylward and his arrogant manner.
[78] Mr Ryan submitted that there appeared to have been nobody running the Workouts if it could be given that description. He stated that the Rules governing workouts to the best of his knowledge are set out in Rule 714. There certainly was not a Stipendiary Steward or Racecourse Inspector present and he suggested that what occurred on the 12th of November 2012 was nothing more or less than half a dozen trainers exercising their horses in a competitive manner. To suggest that it was an official Workout was over the top. No one was in charge, there was no fee charged for horses which worked around and it was clearly an off-the-record, casual training exercise without any official recognition or supervision.
[79] Mr Ryan further submitted that after the incident which gave rise to the Information Mr Pyers simply proceeded around to his stable, changed the cart and then took part in the race. Mr Pyers flatly denies flourishing his whip in a dangerous manner and that is not even suggested by Mr Aylward. Whatever the gesture was, all that occurred was that the whip came into contact with the rail. The rail was hit and Mr Aylward said that “without the rail being there, in my opinion he would have hit me” but of course the rail was there. It is pointless to suggest what might have happened should circumstances have been different. There was a rail. The whip came into contact with it. End of story.
[80] Mr Ryan then submitted that the word “c…..” is the word which is causing the most comment as to its inappropriateness but that is a work which has several meanings, one of which is applicable here he suggested namely that it is an offensive slang meaning word meaning “a mean or obnoxious person”. He further submitted that there is no suggestion whatsoever that there is a sexual content in the word used. My Pyers and Mr Aylward are not friends, they’ve had problems in the past and as Mr Pyers has said there is plenty of bad blood between them.
[81] Mr Ryan stated that the Summary of Offences Act 1981 and the decisions given under that Act are of assistance and he referred to section 4(1)(b) which makes it an offence in a public place to address any words to any person intending to insult or offend that person. He presented comment on the relevant part of the Act for the Committee.
[82] Mr Ryan submitted that the words of this section have been considered in a number of cases and he produced data which he hoped would be of assistance to the Committee.
[83] Brooker v The Police is the leading case and it held that it is not sufficient that the Act was not simply disorderly or offensive; an additional feature must be present. The language must amount to an interference with the right of others sufficiently serious to warrant the intervention of the criminal law. In the context of the case the language needs to be sufficiently serious to warrant the intervention of the Harness Racing Rules.
[84] Mr Ryan referred to Section 04-08 in Brooker which states “whether or not conduct is offensive or disorderly has long been held to be a question of degree with all relevant matters of time, place and circumstances being considered”.
[85] Mr Ryan submitted that the Bill of Rights has some significance and he further referred to Section 14, the Freedom of Expression section. “Everyone has the right to freedom of expression including the freedom to seek, receive and impact information and opinions of any kind and in any form”. The word “opinions” is the relevant word here in connection with the evidence which you have heard.
[86] Mr Ryan stated that Mr Carmichael in his brief of evidence describes Mr Pyers conduct as “disgraceful and unacceptable”. Mr Ryan suggested that is taking matters too far. The evidence produced on Mr Pyers behalf points to a rather different scenario than the evidence produced by the prosecution and in Mr Ryan submits that the explanations from Mr Pyers counterbalances any suggestion that Mr Pyers conduct was disgraceful and unacceptable. He further submits that the use of those inflammatory words goes well beyond the totality of the evidence that is now before this Committee and that in the circumstances he suggests that the Information should be dismissed. Mr Ryan further submits that the Information originating on the 24th of November 2012 was a “storm in a tea cup” and should have been dealt with by way of a written reprimand from Harness Racing New Zealand rather than in the manner which has led to this Hearing.
Reasons for Decision:
[87] We have listened to a number of witnesses for the Informant and also from Mr Pyers himself.
[88] There is a common thread in the evidence from the Informant witnesses. They were all present on the day and were all firsthand witnesses.
[89] Mr Pyers on the one hand admits using the words complained of and yet on the other hand tells us that the witnesses were incorrect in the evidence that they gave against him.
[90] The evidence from Mr Phillips and Mrs Ferguson was in our view particularly compelling. They were both at the workouts in a voluntary capacity and did not appear to have any axe to grind with Mr Pyers and gave straight forward evidence.
[91] It is quite clear that Mr Pyers was asked on several occasions to change his work cart to a race sulky and although he might have eventually done so he did not do so when asked and did not have a satisfactory explanation. The time for the first heat was approaching and Mr Pyers was spending his time out on the track and as far as the organizers of the workout were concerned it was necessary to call Mr Pyers to change his work cart to the race sulky with some expedition.
Clearly Mr Pyers did use the words complained of (he has acknowledged this) and clearly he did lash out at Mr Aylward with his whip. The evidence in respect to all of this is quite compelling and although Mr Pyers might not like Mr Aylward that is not an excuse for his actions.
[92] The reference by Mr Ryan to the section in Brooker V Police, does in our view confirm that the conduct of Mr Pyers was misconduct. The nature of the words, the use of the whip and the location are all factors which, in our view, support a charge of misconduct.
Mr Ryan also refers us to the Bill of Rights and to the Right to Freedom of expression contained in Section 14. That is, in our view, not relevant to the charge being faced by Mr Pyers. The Right to Freedom of expression is still governed by the circumstances in which one exercises that freedom and even though Mr Pyers was expressing what he tells us was his opinion of Mr Aylward, there must surely be some constraints on such expression. To put it bluntly, there is a time and a place and this was neither the time nor the place for Mr Pyers to react in the manner in which he did.
[93] In our view the Informant has properly made out its case against Mr Pyers and that on this occasion he was guilty of misconduct.
Penalty:
Submissions as to Penalty and Costs:
[95] The Informant is given seven (7) days from the date of receipt of this Decision to make submissions as to penalty and costs. A copy of those submissions is to be forwarded to Mr Pyers Counsel.
[96] My Pyers and Mr Ryan have seven (7) days from receipt of those submissions to present their submissions as to penalty and costs.
Dated this 26th day of April 2013
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 26/04/2013
Publish Date: 26/04/2013
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: 4dddbd48ef130d55dd8e9722481c4821
informantnumber: A2852
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 26/04/2013
hearing_title: Non Raceday Inquiry RIU v A J Pyers 12 March 2013 - Decision dated 16 April 2013
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
AND IN THE MATTER of the NZ Rules of Harness Racing
BETWEEN: THE RACING INTEGRITY UNIT ON BEHALF OF HARNESS RACING NEW ZEALAND - (Mr R Carmichael – Chief Race Course Inspector appearing)
Informant
AND MR ALLEN JOHN PYERS – LICENCED TO TRAIN AND OPEN HORSEMAN
Respondent
Information No: A2852
Judicial Committee: BJ Scott, Chairman - JN Holloway, Committee Member
Present: Mr R Carmichael – Chief Race Course Inspector, Mr AJ Pyers - Respondent, Mr AJ Ryan – Counsel for Mr Pyers
Registrar: None
Plea: Not Admitted
Venue: Cambridge Raceway
Date of Hearing: 12 March 2013
Date of Decision: 16 April 2013
DECISION OF JUDICIAL COMMITTEE
The Charge:
[1] The Respondent Licenced Trainer / Horseman, Mr AJ Pyers, faces the following charge:
That on the 24th day of November 2012, Allen John Pyers, being a Licensed Trainer and Open Horseman, did misconduct yourself within the meaning of Rule 303(2) of the Rules of Harness Racing, in that you directed and used foul and abusive words, including “Get f…. you fat c….t”, to Wayne Aylward, the Vice-President of the Morrinsville Trotting Club, and within the hearing of others, and that you did also flourish your whip in a dangerous manner in the vicinity of Wayne Aylward; and that you are thereby liable to the penalty or penalties that may be imposed pursuant to Rule 1003(1) of the Rules of Harness Racing”.
[2] Rule 303(2) provides:
“No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stablehand, unlicensed apprentice or racing manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter.”
Rule 1003(1) provides:
“A person who commits a reach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) A fine not exceeding $10,000.00; and/or
(b) Suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) Disqualification for a period not exceeding 12 months.
In addition to or in substitution of any penalty imposed pursuant to sub-rule(1) hereof, any horse connected with the breach of the Rule may be scratched or disqualified from any race and/or disqualified for a period not exceeding 12 months.”
[3] Mr Pyers acknowledged that he understood the Rules.
Evidence from Mr Carmichael:
[4] Mr Carmichael produced written authority from the General Manager of the Racing Integrity Unit to lodge the Information charging Mr Pyers with a breach of Rule 303(2).
[5] Mr Carmichael’s first witness was Miss Kim Kearns. Miss Kearns advised this Committee that she is a Librarian but that she has also had a Harness Training Licence for 25-30 years.
[6] Miss Kearns gave evidence about being present at the Morrinsville Trotting Club grounds on the 24th of November 2012. She said that the Committee (she thought it was the Workouts Committee) members were sitting on a wooden stage.
[7] Miss Kearns said that Mr Pyers was going out to a workout and he had a work sulky on his horse and she said that Mr Aylward had told him to go back and get the correct sulky. She said that Mr Pyers ignored Mr Aylward and continued to go around the track and when asked again in a nice manner he come over to the fence to Mr Aylward and slammed his whip down close to him. She said that Mr Pyers used the words referred to in the Information to Mr Aylward.
[8] Miss Kearns also said that the nature of the whip landing by Mr Aylward was aggressive and dangerous.
[9] Miss Kearns also said that she is not friends with any of the parties and that she was only a witness. She had provided a witness statement to Mr Carmichael.
[10] Miss Kearns did say that she was standing 10 metres behind Mr Aylward so she could not get a good view as to whether the whip struck Mr Aylward or not but she thought it was very close to that.
[11] In answer to a question from Mr Ryan she said that she thought that a Mr Teaz was there but that she did not know Mr Teaz. In answer to a further question she said that Mr Trevor Phillips was there and he had already asked Mr Pyers to change his sulky but he did not do so.
[12] Ms Kearns was asked who was in charge of the trials and if she had to pay a fee for entry and she said that she was unsure. She did not think that she paid a fee on that particular day.
[13] By way of examination Miss Kearns said that she was certain of the words complained of because she wrote a letter immediately while the words were fresh in her mind.
[14] She was asked if there was any provocation from any members of the Workouts Committee and she said no.
[15] In answer to a question from the Committee, Miss Kearns said that she didn’t know whether there were any other races there on the day and that all she was concerned about was herself and her horse. She did not take note of anything else that happened on the day other than the fact that she heard Mr Pyers utter the words complained of.
[16] Mr Carmichael then called Mr Jason Teaz to give evidence. He is a Licensed Horse Trainer.
[17] Mr Teaz said that the workouts were normally at Cambridge but once a year there is an event at Cambridge Raceway and accordingly the workouts are held at the Morrinsville Trotting Club grounds.
[18] Mr Teaz said that he wasn’t on the Workouts Committee at that stage but in some circumstances the Trotting Club asked Mr Teaz to help. He said that he was Commentator, Judge and Timekeeper. He further said that he was on a wooden platform up off the ground and he was there with Wendy Ferguson and Trevor Phillips.
Mr Teaz confirmed that Miss Kearns had her horse there and that when the programme had been submitted Mr Pyers was in Heat one.
[19] Mr Teaz said that although these were not official trials Drivers have to wear their colours and they have to use their race sulkies. This is because the Sulky fund applies.
[20] Mr Teaz said that prior to Mr Pyers Heat there was an incident in that Mr Pyers came onto the track with a work cart. It was a Challenger make of work cart. Mr Teaz said he yelled out to Mr Pyers to change the cart and Mr Trevor Phillips did so too. He said that Mr Pyers wouldn’t. He also said that other horses then went onto the track with the sulkies on.
[21] Mr Teaz said that Mr Aylward then arrived and because he was the Vice-President of the Morrinsville Trotting Club he thought that Mr Aylward would have more jurisdiction than he and he asked him to speak to Mr Pyers. He said he did so and did in a nice manner. He said that as a result Mr Pyers came back around the track and close to the rail and struck the running rail with his whip.
[22] Mr Teaz said that he wanted to have Mr Pyers horse scratched from the heat but in the finish Mr Pyers went and changed his sulky and came back out. Mr Teaz said that another Trainer Mr Peary came out with a work cart on and was asked to change it and did so without any problem.
[23] Mr Teaz said that there were quite a number of people there because the first heat was about to begin and in his view everyone heard the abuse from Mr Pyers to Mr Aylward and saw the strike with the whip.
[24] Mr Teaz, in response to a question from Mr Ryan, said that they were not official Trials and that there were no Stipendiary Stewards present but they were run under the auspices of the Cambridge Harness Racing Club and they were as official as you can get without Stipendiary Stewards etc.
[25] Mr Ryan then asked him if the fence was up to standard for a proper Trial and Mr Teaz thought it was OK.
[26] Mr Teaz was asked who was in charge of the workouts and he said that initially Mr Trevor Phillips who is Committee Member of the Morrinsville Trotting Club and then subsequently the Vice-President Mr Wayne Aylward turned up.
[27] In answer to a further question Mr Teaz explained the difference between Workouts and official Trials.
[28] Mr Teaz was asked what words Mr Pyers supposedly used and he said the words that were set out in the Information.
[29] Mr Teaz also said that when Mr Pyers went past Mr Aylward he tried hitting with the whip and he actually thought he had made contact with the whip. He said that he didn’t know how he missed.
[30] Mr Teaz was then questioned about his previous tension with Mr Pyers and the extensive texts between the two of them.
[31] Mr Teaz said that he told Mr Pyers that his behaviour was not what it should have been and that he was likely to lose his license.
[32] Under reexamination Mr Teaz said that there were no entry fees for the workouts on that day. He said that it was a decision made by the Workouts Committee on the day.
[33] Mr Carmichael then called Mr Trevor Phillips to give evidence. He advised the Committee that he is a Licensed Horse Trainer.
Mr Phillips said he was present at the workouts at the Morrinsville Trotting Club grounds on the 24th of November 2012. He said he doesn’t really have a role at the workouts but he just often helped with timekeeping and he helps out at the start.
[34] Mr Phillips said that both Mr Teaz and Mr Aylward asked Mr Pyers to go and change his cart but Mr Pyers refused. Mr Phillips said he was leaning on the rail about 3 metres away from Mr Aylward at the time.
[35] Mr Phillips said that Mr Aylward then said to Mr Pyers “if you do not change your cart you will not be able to start”. He said that Mr Pyers then said “we will see about that you f…. c…..”.
[36] Mr Phillips said that Mr Pyers took his horse around and lashed out with the whip and he said he thought that Mr Aylward had been struck across both arms. He confirmed that Mr Aylward was polite at all times.
[37] By way of cross examination, Mr Phillips said that he also asked Mr Pyers to change his sulky and said that if he didn’t do so then he wouldn’t be able to start. He said that Mr Aylward said the same thing.
[38] Mr Phillips then said that Mr Pyers went to the barn and changed his cart and then took part in the heat.
[39] Under cross examination it was suggest to Mr Phillips that the language complained of was used around the Morrinsville track. He said that certainly not in front of people.
[40] Mr Carmichael then called Mrs Wendy Ferguson to give evidence. Mrs Ferguson said that she videos the workouts when they are on and that she went to the Morrinsville Trotting Club grounds and that she was up on the platform where Mr Teaz and Mr Phillips etc were.
[41] When asked if she recalled the incident regarding Mr Pyers she said that she was sitting on the platform and she was aware that Mr Pyers was asked to change his work cart. She was also aware that Mr Aylward asked him a second time to change the cart and she saw Mr Pyers fling his whip at Mr Aylward.
[42] When asked what language she heard she said there was quite a bit of noise around but she thought that Mr Pyers called Mr Aylward a fat b……. Under cross examination Mrs Ferguson said she was not sure who was the first person to ask Mr Pyers to change his cart and that she only heard Mr Aylward do so.
[43] Mr Carmichael then called Mr James Robin Aylward to give evidence. He said that he is retired and in November 2012 he attended the workouts at the Morrinsville Trotting Club grounds as a Senior Official. He said that he was the Vice President of the Trotting Club at the time.
[44] Mr Aylward said that when he arrived he was approached by Mr Teaz and Mr Phillips and was made aware of the situation concerning Mr Pyers. He said that he then told Mr Pyers that he would have to change his cart.
[45] Mr Aylward said that he then went over to the fence and that Mr Pyers struck out at him with the whip.
Mr Aylward said that Mr Pyers called him a fat f…. c….. He said that he was out on his horse and turned and came back and struck out at Mr Aylward with the whip and he said that he saw it coming and he backed off. Mr Aylward said that Mr Phillips had also asked Mr Pyers to change his cart.
[46] By way of cross examination Mr Aylward was asked if he said “get that horse off the track it is scratched”. He said that he did not say that. He said that he advised Mr Pyers that if he did not change his cart then his horse would have to be scratched. Mr Aylward then gave evidence of some history between Mr Pyers and himself concerning their financial matters and horse ownership. He said that Mr Pyers was incorrect as far as allegations concerning horse ownership were concerned.
[47] Under cross examination Mr Aylward said that he had resigned from the Morrinsville Trotting Club Committee about six days after this particular incident.
[48] Mr Ryan then suggested to Mr Aylward that he was an aggressive man. He did not agree with that but he did say that he tries to say what is right. When asked if he was aggressive on the day he said he was just getting to do his job.
[49] Mr Ryan then asked Mr Aylward if he was the one who triggered off this incident. He said that he was not and he also said the words about “the horse is scratched” were Mr Ryan’s words not his.
[50] Mr Aylward was then asked if he agreed that the Workouts were unofficial. He said they were official Workouts under the auspices of the Cambridge Harness Racing Club and were transferred to the Morrinsville Trotting Club grounds on this occasion. He said that he was there as the Senior Official as he was the Vice President of the Morrinsville Trotting Club.
[51] Mr Carmichael then gave evidence. He produced his book of exhibits, official records, interviews and his evidence.
[52] Mr Carmichael said that on the 24th of November 2012 as a result of a telephone call from the then President of the Morrinsville Trotting Club he commenced inquiries into a matter arising during workouts at the Club’s grounds at Morrinsville.
[53] Mr Carmichael said that on the 26th of November 2012 he received a number of statements, via email, from a number of people who were at the workouts.
[54] Mr Carmichael then gave evidence about making arrangements to interview Mr Pyers and that he subsequently interviewed him at Mr Ryan’s office in Cambridge. He produced a record of that interview.
[55] Mr Carmichael confirmed that Mr Pyers was the holder of a Public Trainer and Open Horseman’s License.
[56] Mr Carmichael produced the transcript of the interview with Mr Pyers, the essence of which was that Mr Pyers denied saying that he was not going to change his cart. He also was aware that Mr Peary was not out on the track at that stage and that he would have to change his cart so Mr Pyers was spending more time out on the track. Mr Pyers also told him that Mr Aylward yelled out to him that his horse was scratched. When asked about the words complained of, he said that he did not say them to Mr Aylward nor in front of the other witnesses but he may have said the words around the corner of the track. Mr Pyers also told him that he did not lash out at Mr Aylward with the whip and smash it down in front of him but he just flicked it towards Mr Aylward. He said he was too far away from Mr Aylward and he just flicked the whip and it would not have been that hard and stopped.
[57] Under cross examination Mr Carmichael said that in respect to the meeting with Mr Pyers on the 10th of January 2013 he had to go to Morrinsville to check on another horse and he had to do a stable inspection. He said that he served the Information on Mr Pyers and that he did not seem upset about that.
[58] Mr Carmichael was asked why it took so long to provide disclosure of relevant information to Mr Ryan and he said that he was following the usual steps because a complaint had been made by the Morrinsville Trotting Club and the Club was keen to see it followed through.
[59] Mr Pyers was then called to give evidence. He read from a prepared statement.
[60] Mr Pyers confirmed that he had his horse entered at the workout. He said that the workout was scheduled for 10.00am and he was on the track at about 9.40 working his horse and he drove past a group of people. He said that unbeknown to him Wayne Aylward was in the vicinity and he called out “get that horse off the track, its scratched”. He said that he had previously had a discussion with Trevor Phillips who told him to change his cart because they wanted horses with race carts on and he had agreed, then he went another round and Trevor Phillips repeated what he had already told him. He said that he knew that John Peary was going to have a horse in the workout but he had not yet arrived so that he still had time to walk his mare back around the track and take it off and put his race cart on.
[61] Mr Pyers said that Mr Aylward’s comments to him were in a dogmatic fashion and that he was not aware that Mr Aylward had anything to do with the control of the workouts. He said that there was certainly no issue with him changing his cart from a work cart to a race cart.
[62] Mr Pyers said he was taken by surprise when Mr Aylward called out to him especially in the manner in him doing so and he did respond using the words contained in the Information. He said that at no point did Mr Aylward ever tell him to change the cart.
[63] Mr Pyers then said that he flatly denied flourishing the whip in a dangerous manner. He said that all he did was drag the whip along the rail for a short distance but it certainly did not come into contact with Mr Aylward and there was nothing dangerous about it.
[64] He said that in relation to Mr Teaz’s evidence that Mr Teaz had pestered him with text messages after the incident and made such statements to him as “you are going to lose your License” and “its all Carmichael needed” and “you will get kicked off the track”.
[65] Mr Pyers said the statements made by Trevor Phillips and Mrs Wendy Ferguson were quite wrong.
[66] Mr Pyers then advised the Committee that he suffers from dyslexia and in addition to that he has a back injury resulting from a horse falling on him. These require him to take medication.
[67] Mr Pyers said that as to the use of the “f and c words” it is a spontaneous statement from him in the particular circumstances. He said that the use of the words did not have any sexual meaning but just related to his attitude to Mr Aylward in that he was a person that Mr Pyers did not like or have any time for.
[68] Mr Pyers also sought to introduce as evidence a letter of support. This was objected to by Mr Carmichael because the content could not be tested in cross examination. The Committee upheld Mr Carmichael’s objection.
[69] Under cross examination Mr Pyers said that he did not deny that he used the words but he did deny the context in which they were being used.
[70] In answer to a further question he said that he did not know he was directing the words at Mr Aylward but rather it was just to some person who said that his horse was to be scratched.
[71] Mr Pyers was asked that after he was told by Mr Phillips to change the cart, why did he do another round of the track. He answered that it was because his mare plays up at the starting gate.
Summary by Mr Carmichael:
[72] Mr Carmichael said that it was irrelevant as to when the conduct occurred. He said that for the purposes of Rule 303(2) the words used have a common meaning and they are derogatory terms which are intended to insult. This is even if it is done as a reflex action.
[73] Mr Carmichael said that Mr Pyers knew very well that it was Mr Aylward that he was directing the words to. He also said that it was very clear that Mr Pyers walked his horse around in front of Mr Aylward and then struck the rail with his whip very close to Mr Aylward and he did so with a fair degree of force.
[74] Mr Carmichael said that the actions of Mr Pyers were not the actions of a responsible License Holder and that he is therefore guilty of misconduct.
Submissions by Mr Ryan:
[75] Mr Ryan submitted that misconduct is defined in Collins English Dictionary as
“1. Behaviour such as adultery or professional negligence that is regarded as immoral or unethical.
2. To conduct oneself in such a way.
3. To manage something badly.”
[76] He further submitted that under none of those meanings has the prosecution proved that Mr Pyers behaviour on the day in question, the 24th of November 2012 amounted to misconduct.
[77] As to the alleged foul and abusive words in the Information, Mr Ryan suggested that the language there, while inappropriate in some circumstances, was not such that it could amount to misconduct on the day in question, given the attitude of Mr Aylward and his arrogant manner.
[78] Mr Ryan submitted that there appeared to have been nobody running the Workouts if it could be given that description. He stated that the Rules governing workouts to the best of his knowledge are set out in Rule 714. There certainly was not a Stipendiary Steward or Racecourse Inspector present and he suggested that what occurred on the 12th of November 2012 was nothing more or less than half a dozen trainers exercising their horses in a competitive manner. To suggest that it was an official Workout was over the top. No one was in charge, there was no fee charged for horses which worked around and it was clearly an off-the-record, casual training exercise without any official recognition or supervision.
[79] Mr Ryan further submitted that after the incident which gave rise to the Information Mr Pyers simply proceeded around to his stable, changed the cart and then took part in the race. Mr Pyers flatly denies flourishing his whip in a dangerous manner and that is not even suggested by Mr Aylward. Whatever the gesture was, all that occurred was that the whip came into contact with the rail. The rail was hit and Mr Aylward said that “without the rail being there, in my opinion he would have hit me” but of course the rail was there. It is pointless to suggest what might have happened should circumstances have been different. There was a rail. The whip came into contact with it. End of story.
[80] Mr Ryan then submitted that the word “c…..” is the word which is causing the most comment as to its inappropriateness but that is a work which has several meanings, one of which is applicable here he suggested namely that it is an offensive slang meaning word meaning “a mean or obnoxious person”. He further submitted that there is no suggestion whatsoever that there is a sexual content in the word used. My Pyers and Mr Aylward are not friends, they’ve had problems in the past and as Mr Pyers has said there is plenty of bad blood between them.
[81] Mr Ryan stated that the Summary of Offences Act 1981 and the decisions given under that Act are of assistance and he referred to section 4(1)(b) which makes it an offence in a public place to address any words to any person intending to insult or offend that person. He presented comment on the relevant part of the Act for the Committee.
[82] Mr Ryan submitted that the words of this section have been considered in a number of cases and he produced data which he hoped would be of assistance to the Committee.
[83] Brooker v The Police is the leading case and it held that it is not sufficient that the Act was not simply disorderly or offensive; an additional feature must be present. The language must amount to an interference with the right of others sufficiently serious to warrant the intervention of the criminal law. In the context of the case the language needs to be sufficiently serious to warrant the intervention of the Harness Racing Rules.
[84] Mr Ryan referred to Section 04-08 in Brooker which states “whether or not conduct is offensive or disorderly has long been held to be a question of degree with all relevant matters of time, place and circumstances being considered”.
[85] Mr Ryan submitted that the Bill of Rights has some significance and he further referred to Section 14, the Freedom of Expression section. “Everyone has the right to freedom of expression including the freedom to seek, receive and impact information and opinions of any kind and in any form”. The word “opinions” is the relevant word here in connection with the evidence which you have heard.
[86] Mr Ryan stated that Mr Carmichael in his brief of evidence describes Mr Pyers conduct as “disgraceful and unacceptable”. Mr Ryan suggested that is taking matters too far. The evidence produced on Mr Pyers behalf points to a rather different scenario than the evidence produced by the prosecution and in Mr Ryan submits that the explanations from Mr Pyers counterbalances any suggestion that Mr Pyers conduct was disgraceful and unacceptable. He further submits that the use of those inflammatory words goes well beyond the totality of the evidence that is now before this Committee and that in the circumstances he suggests that the Information should be dismissed. Mr Ryan further submits that the Information originating on the 24th of November 2012 was a “storm in a tea cup” and should have been dealt with by way of a written reprimand from Harness Racing New Zealand rather than in the manner which has led to this Hearing.
Reasons for Decision:
[87] We have listened to a number of witnesses for the Informant and also from Mr Pyers himself.
[88] There is a common thread in the evidence from the Informant witnesses. They were all present on the day and were all firsthand witnesses.
[89] Mr Pyers on the one hand admits using the words complained of and yet on the other hand tells us that the witnesses were incorrect in the evidence that they gave against him.
[90] The evidence from Mr Phillips and Mrs Ferguson was in our view particularly compelling. They were both at the workouts in a voluntary capacity and did not appear to have any axe to grind with Mr Pyers and gave straight forward evidence.
[91] It is quite clear that Mr Pyers was asked on several occasions to change his work cart to a race sulky and although he might have eventually done so he did not do so when asked and did not have a satisfactory explanation. The time for the first heat was approaching and Mr Pyers was spending his time out on the track and as far as the organizers of the workout were concerned it was necessary to call Mr Pyers to change his work cart to the race sulky with some expedition.
Clearly Mr Pyers did use the words complained of (he has acknowledged this) and clearly he did lash out at Mr Aylward with his whip. The evidence in respect to all of this is quite compelling and although Mr Pyers might not like Mr Aylward that is not an excuse for his actions.
[92] The reference by Mr Ryan to the section in Brooker V Police, does in our view confirm that the conduct of Mr Pyers was misconduct. The nature of the words, the use of the whip and the location are all factors which, in our view, support a charge of misconduct.
Mr Ryan also refers us to the Bill of Rights and to the Right to Freedom of expression contained in Section 14. That is, in our view, not relevant to the charge being faced by Mr Pyers. The Right to Freedom of expression is still governed by the circumstances in which one exercises that freedom and even though Mr Pyers was expressing what he tells us was his opinion of Mr Aylward, there must surely be some constraints on such expression. To put it bluntly, there is a time and a place and this was neither the time nor the place for Mr Pyers to react in the manner in which he did.
[93] In our view the Informant has properly made out its case against Mr Pyers and that on this occasion he was guilty of misconduct.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
Submissions as to Penalty and Costs:
[95] The Informant is given seven (7) days from the date of receipt of this Decision to make submissions as to penalty and costs. A copy of those submissions is to be forwarded to Mr Pyers Counsel.
[96] My Pyers and Mr Ryan have seven (7) days from receipt of those submissions to present their submissions as to penalty and costs.
Dated this 26th day of April 2013
hearing_type: Non-race day
Rules: 303(2)
Informant: Mr R Carmichael - Chief Race Course Inspector - Racing Integrity Unit
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PersonPresent: Mr R Carmichael - Chief Race Course Inspector, Mr A J Pyers - Respondent, Mr A J Ryan - Counsel for Mr Pyers
Respondent: Mr A J Pyers - Licensed to Train and Open Horseman
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